decided as amended january 3 1979.: November 27, 1978.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (D.C. Civil Action No. 74-496)
Before Rosenn and Weis, Circuit Judges and Fisher, District Judge.*fn*
In this products liability case, a jury found that a power press manufactured by defendant without a guarding device was unreasonably dangerous, and awarded plaintiff damages for the injuries he sustained while operating the machine. Although the question of liability was for the jury, the judgment must be vacated because of error in permitting expert testimony that included a "growth factor" in projecting future loss of earnings. Admission of such evidence being impermissible under applicable Pennsylvania law, we grant a new trial.
Plaintiff's left hand was severely injured when it was caught in a power press he was operating in the course of his employment with the Clark Equipment Company. He brought suit against The Federal Press Company, the manufacturer of the machine, alleging defective design because of the lack of an adequate safety device. A jury returned a verdict in favor of the plaintiff in the amount of $750,000 against Federal, with a verdict over against the employer Clark, joined by Federal on a claim for contribution.
The accident occurred on September 24, 1972, at the Clark factory in Reading, Pennsylvania as Heckman was using a foot pedal to operate the press. The machine functions by dropping a heavy ram onto a die, cutting or shaping the metal which rests on the lower surface. As plaintiff placed a piece of metal in the machine to be cut, the ram came down on his hand, resulting in the amputation of several fingers and other damage.
The press had been purchased by Clark in 1970. It could be operated in two different ways: with hand controls requiring the use of both hands on switches away from the point of operation, or, alternatively, by the use of a foot pedal, an optional item ordered by Clark. When the manual operation was used, the employee's hands necessarily were protected. However, when the foot pedal was utilized without a guard, there was nothing to prevent the hands from being placed in the operating area directly under the descending ram.
Federal did not provide safety appliances other than the dual buttons for manual operation except upon the customer's specific request and at its expense. When ordered, the guards were secured from other sources and attached by Federal. On delivery of the equipment to Clark, Federal sent a letter suggesting, Inter alia, that the customer "obtain, install, and use "point of operation' guarding for greater operator safety." In addition, the press itself had a warning plate with similar instructions for use.
Various types of safeguards designed to protect the operator were available on the market, including some designed to accommodate specific uses of the multi-purpose machine. Clark did in fact purchase a point-of-operation guard for $100, but it was not on the press at the time the injury occurred, and, in any event, its efficacy was challenged. Plaintiff produced expert testimony to establish that at least one type of appliance would be effective in about 95% Of the customary uses of the press, and that the failure to supply such a device made the press defective within the meaning of Restatement (Second) of Torts § 402A (1965).
Federal contended it was not customary in the trade to furnish guards except upon request, and the multitude of uses to which the machine could be put made it impracticable to designate any one device as standard equipment. Moreover, Clark's failure to heed Federal's warning was said to be a superseding cause absolving defendant from all liability. Finally, Federal relied upon state regulations placing responsibility for the safe operation of presses upon employers and employees.
In presenting his damages, plaintiff testified that he had finished three years of college, but had decided not to complete the degree requirements. Thereafter, he worked briefly as a management trainee in a clothing store and as a mason's helper before joining Clark in February, 1972 as an assemblyman making truck trailers. Within months, he was promoted to work on presses where he received $4.15 per hour, a position he occupied for only 20 days before the accident occurred.
Following his injury, plaintiff was away from work for five weeks during which he underwent surgery for his mangled hand. On his return to Clark, he was assigned the duties of a clerk at $3 per hour. Some months later, after determining the clerk position had no future, plaintiff returned to college and graduated in due course. At the time of trial, he was within a few months of achieving a Master's Degree in Public Administration, with a concentration in labor relations. Upon completion of his graduate studies, plaintiff expected to secure a position with a governmental agency at a starting salary of approximately $9,000 per year, increasing to $12,000 or $13,000 within three years.
A vocational expert projected that, had the accident not occurred, plaintiff would have become a tool and die maker at an annual income of $14,560. However, because of the disability to his left hand, plaintiff would have to resort to the free labor market where the annual income would be $6,240, an annual loss of future earnings, according to the expert, of $8,320. On this basis, plaintiff's actuary computed the present value of future loss of earnings to be $151,423, to which he added a 3% "growth factor," for a total of $235,231. Medical expenses were $2,477.83, and the loss of wages for the period immediately following the accident was $960, with an additional $460 differential during the time plaintiff worked as a clerk for Clark before returning to college.
In answer to interrogatories, the jury found that Federal had sold a press in a defective condition, Clark Equipment Company was negligent, and plaintiff Heckman had not assumed the risk. It awarded Heckman damages of $750,000. Motions for judgment n.o.v., and for a new trial were filed by both Federal and Clark, and Federal also asked in the alternative for a remittitur. After ...